Traditional Courts Bill presentation – Department of Justice and Constitutional Development
The Chairperson of the Portfolio announced that the first day of the public hearings on the Traditional Courts Bill would be a short day as the intention was to draw back the curtains and to get some indication of the intentions of the Bill and initial responses. The day would be more of a mapping out of a process and ensuring that all major leaders were brought on board so that the process did not end up with a piece of legislation that would have to be amended in due course. He noted that the issue of the Traditional Court Bill was part of the new dawn and was about the social fabric of the African people. The freedom of people who had been made second or third citizens in their own country had continued 20 years into democracy and could not continue for another 20 years.
The Department of Justice and Constitutional Development explained that the Bill was intended to improve access to justice services by enhancing the effectiveness, efficiency and integrity of traditional courts to resolve disputes, with a view to promoting social cohesion, co-existence and peace and harmony. Traditional courts existed; it was a constitutional imperative that they be transformed to suit the new constitutional dispensation. The Bill addressed the enforcement of orders of traditional courts, the escalation of matters, and procedures in traditional courts. The Bill was very clear on safeguards, protection and assistance of vulnerable groups and failure to comply with procedural aspects could result in the matter being taken on review to the High Court.
The traditional courts had to promote and protect the representation and participation of women, both as parties and as members of the courts. Before any proceedings of a court could begin, the traditional leader had to say a pledge that he or she would protect and promote the values enshrined in the Constitution. A court could only hear a matter if the parties agreed to the resolution of the dispute in that court. In addition, the Bill required the training of traditional leaders and members of traditional courts as well as the involvement and training of paralegals and interns in the functioning of traditional courts.
The Legal Advisor noted that a reference group had met on numerous occasions during 2016. The reference group had consisted of representatives of civil society, traditional leaders and government. The concerns raised in respect of the 2008 and 2012 versions of the Bill had been taken into account and addressed in the current Bill.
The Chairperson said that the Portfolio Committee was disappointed that it had taken Department of Justice and Constitutional Development ten years to produce a Bill like that. The Committee would hear in the course of the discussion that the Bill did not seem to restore the dignity of the institution of traditional courts. African people had not been taken seriously and the European legacy in the Bill was trying to bring African courts in line with the principles of the Constitution. He wanted the political principals, the politicians who had driven the Bill process, to appear before the Committee the following day and to explain why they had not seen to those matters
The Provincial Efficiency Enhancement Committee in KwaZulu-Natal presented its views on the Bill. Traditional law was not subservient to common law. An Act of Parliament had recognised traditional courts. Those courts should, therefore, be given the same recognition as any other court. The clause allowing people to opt out of the traditional court undermined the traditional courts and might infringe on the rights of people if some people were not subject to the court. The Bill did not say how jurisdiction arose. The enforcement of traditional court orders was not clarified. Holding court to take a pledge every day was impractical and demeaning. Other courts did not do that.
Members asked about the jurisdiction of the court. What if there was a traditional court and a magistrate’s court in a rural area, which one should a person to go to? Did magistrates not have jurisdiction in the rural areas where there were Africans, but in cities only? The clause regarding opting out concerned several Members. Did it not invalidate the whole thing? Why have it in the first place if one could opt? Under what circumstances and at what stage could one opt? And on which grounds? Members asked whether there was not an incorrect impression that the Bill had created the traditional courts. Another Member asked when everyone was going to stop lamenting and reliving the past when they had administrative and legislative authority in their hands.
The Coordinator for the Alliance for Rural Democracy made a presentation. She had been in the Reference Group but some people in the group had felt that their voices were being marginalised. Terms such as ‘presiding officer’ gave power to a senior traditional leader and distorted the living customary law based on distributed power, participation and consensus. Most disputes were between families and a person needed to have the right to opt out if one did not think that one would have a fair hearing. The first Bill had recognised levels of customary dispute practice and that it started with families. She was not sure whether the latest Bill recognised the layers of customary courts. Committee Members needed to see how people felt in the rural areas because, ultimately, the rural people were those who would be impacted by the Bill. She was convinced that there would not be true consultation as there was never any money in Parliament for rural consultation.
The Coordinator asserted that the types of offences that traditional courts could hear were not listed. What if the courts were able to take away citizenship or human rights, for example? There was a need to educate people. The Bill stated that women might participate, not that they had to participate and yet, in the rural areas, women had been socialised to believe that traditional courts were for men. She felt strongly that women would not be fully recognised everywhere as there were still parts of the country where there was strong male dominance.
The Coordinator for the Freedom Alliance was accompanied by a farmer from Mpumalanga who told a story of abuse and death at the hands of traditional leaders in a traditional court.
A Committee Member asked the Coordinator if she did not agree that there was no need for people who would quote Roman-Dutch Law, procedures and other things in a traditional court. Another Member was concerned that if people had the right to choose their leader, induna or inkosi, the institution would be diluted by the so-called freedom to choose. Was the coordinator from a rural area? What was the minimum number of women that she wanted involved in the traditional courts?
The CEO of the National House of Traditional Leaders asked if the coordinator of the Alliance for Rural Democracy had read the guiding principles regarding the application of the Bill. He asked if there was a difference between opting out and recusal in the Bill. Was there any understanding of the difference? He noted that the fine that was normally paid in a traditional court did not go to the person and therefore it was not restorative justice, but the Bill referred to restorative justice in Clause 8. That might give rise to understanding. He stated that it was very rare that one came across a Committee in Parliament that had such a deep understanding of traditional leadership.
A member of the National House of Traditional Leaders assured the coordinator of the Alliance for Rural Democracy that there was progress as she, as a woman, was a Chief and was the Head of the Traditional Council. She wanted it placed on record that the story that Mr Mabuza had related was an isolated incident that had to be dealt with in terms of the law of the country. Traditional leaders were not killing people.
The Regional Magistrate from Eshowe informed the Committee that he and his colleagues had recently conducted five workshops for traditional leaders under the auspices of the College of Justice and they had established that women were participating in the traditional courts. There were 256 participants and 23 were women. In KwaZulu-Natal there was full participation by women as headwomen.
The Chairperson announced that the Congress of Traditional Leaders of South Africa would appear the following day and he hoped that the Congress would throw more light on the matter. The National House of Traditional Leaders would make a presentation the following week.
The Chairperson welcomed everyone, including Justice Madondo, Judge Mlapho, Chief Mahlangu, Chairperson National House of Traditional Leaders, and Mr Abram Sithole, his Chief Executive Officer.
The Chairperson suggested that the Committee might even have to ask the political leaders responsible for the Bill to be present in the meeting the following week.
The Chairperson said that the Department of Justice and Constitutional Development (DoJ&CD) had presented a summary of the Bill previously and would summarise that input at the start of the hearing. He noted that the issue of the Traditional Courts Bill was part of the new dawn and was about the social fabric of the African people. For too long, in the 20 years of democracy, people had tended to prioritise the European legacy and not the African legacy. The majority of voters who had put Members in Parliament were African people who had been made second or third class citizens in their own country. That could not continue for another 20 years. This included the Khoi and the San people. If Parliament should do justice to any Bill this year, it was the Bill on Traditional Courts.
He was delighted that there were distinguished leaders with the Committee so that Members did not start on a wrong footing. The day would be more of a mapping out of a process and ensuring that all major leaders were brought on board so that the process did not end up with a piece of legislation that was a trial and error that would have to be amended in due course. The freedom of people could not be delayed any longer. The Bill had to address the issue for once and for all.
The Department had been asked to refresh everyone’s memories on what the Bill was all about. He wanted presenters to address the critical issues and not have a complaints session. The State Law Advisor would highlight the key issues for discussion. The purpose of Parliament was to come up with legal options and a legislative framework and finally an Act that would have legitimacy in the eyes of the people.
Presentation by the State Law Advisor
Adv Dingaan Mangena, State Law Advisor, DoJ&CD, presented a summary of the Department’s input in respect of the Traditional Courts Bill.
The main object of the Bill is to create a uniform legislative framework, regulating the role and functions of traditional courts in the resolution of certain disputes, in accordance with constitutional imperatives and values.
The Bill is intended to improve access to justice services by enhancing the effectiveness, efficiency and integrity of traditional courts to resolve disputes, with a view to promoting social cohesion, co-existence and peace and harmony. The status and role of traditional leadership was recognised. Traditional courts existed; it was a constitutional imperative that they be transformed to suit the new constitutional dispensation. Chapter 12 of the Constitution recognised the institution, status and role of traditional leadership. Schedule 6 of the Constitution recognised the existence of traditional courts.
The Bill was a new Bill and every effort had been made to address the concerns raised in respect of the two previous Bills introduced into Parliament in 2008 and 2012, especially in respect of the role of women and other vulnerable groups.
Adv Mangena went on to explain the key principles of the Bill. The guiding principles in Clause 3 were important because they set the scene for what was expected of traditional courts when they dealt with disputes. High on the agenda was constitutional values. The focus was on restorative justice and reconciliation through mediation. The courts had to bear in mind the existence of systemic unfair discrimination and inequalities or attitudes in conflict with the Constitution. The courts could not preclude voluntary participation in court proceedings by any person or group of persons, particularly in respect of gender, gender identity, sexual orientation, age, disability, religion, language, marital status and race brought about by colonialism, apartheid and patriarchy. People should voluntarily subject themselves to the customary law and traditional courts.
Clause 4 dealt with the institution of proceedings in traditional courts. Proceedings could not be instituted if the dispute was being dealt with at another level in the traditional justice system or if the matter was pending before a court of law or being investigated by the police. A court could only hear a matter if the parties agreed to the resolution of the dispute in that court. Traditional courts could hear less serious disputes which disturbed harmonious relationships within communities. There was no distinction between civil and criminal jurisdiction.
Clause 5 dealt with the composition of and participation in traditional courts. Traditional courts had to constitute of women and men and promote the right to equality. The courts had to promote and protect the representation and participation of women, as parties and members of the courts. Before any proceedings of a court begin, the traditional leader had to say a pledge that he or she would protect and promote the values enshrined in the Constitution.
Clause 6 defined the nature of traditional courts as courts of law under customary law, with the specific purpose of promoting the equitable and fair resolution of disputes according to customary law and custom values. They did not function as courts referred to in Chapter 8 of the Constitution. The focus was on preventing conflict, maintaining harmony and resolving disputes in a manner that promoted restorative justice, social cohesion and reconciliation.
Clause 7 related to procedure in traditional courts and safeguards protection and assistance of vulnerable groups. Failure to comply with the procedural aspects could result in the matter being taken on review to the High Court. Provincial Registrars were required to assist unhappy litigants to take their matters on review. Parties were allowed to be assisted by any person of their choice, but legal representation was not allowed.
Clause 8 addressed orders that might be made by traditional courts. The emphasis was on restorative justice measures, for instance compensation and redress, aimed at restoring the relations between parties and
promoting social cohesion. Clause 9 dealt with enforcement of orders of traditional courts. If a party failed to comply with an order the aggrieved party could approach the clerk of the traditional court who would try to mediate. If unsuccessful, the clerk had to refer the matter to a justice of the peace.
Clause 10 provided for Provincial Traditional Court Registrars and set out their role and responsibilities.
Clause 11 dealt with the review by High Court of procedural short-comings, for instance, if the court was not properly constituted or the parties were not allowed representation by persons of their choice. The High Court could confirm, alter, set aside or correct the order made by the traditional court, set aside or correct the proceedings of the traditional court, make an order not made by a traditional court, or remit the case to the traditional court to deal with in a manner ordered by the High Court. Clause 12 provided for escalation of matters from traditional courts to a customary institution or structure in accordance with customary law and custom; that was the appeals process.
In addition, the Bill required the training of traditional leaders and members of traditional courts and the involvement and training of paralegals and interns in the functioning of traditional courts.
A Reference Group had met on numerous occasions during 2016. The Reference Group consisted of representatives of civil society, traditional leaders and Government. The concerns raised in respect of the 2008 and 2012 versions of the Bill had been taken into account and addressed.
The Chairperson said that the Portfolio Committee was disappointed that it had taken DoJ&CD ten years to produce a Bill like that. The Committee would hear in the course of the discussion that the Bill did not seem to restore the dignity of the institution.
The country had had visits by Queen Elizabeth and Queen Juliana, but he had never heard traditional leaders called royalty. The Bill did not reflect an understanding of the composition of traditional African society. One had kings and queens and under them, the senior traditional leaders and under them were the headmen and headwomen. He could not believe that, for ten years, the people who had been involved in the Bill had not been able to see through the shortcomings. When a Bill of that nature was dealt with, one had to understand the meaning of being an African, what was an African society and the composition of African society. If one did not understand that, one could not restore the dignity of African people. English Common Law and Roman-Dutch Law were accepted but in Africa, which was much older than Europe, one referred to customary law and traditions as if Africa and African people did not grow. He suggested that it was a carry-over of the colonial doctrine of repugnancy that had said African laws were only valid if they were not in conflict with a European understanding of justice.
The Bill did not recognise that there were well-developed indigenous systems of appeal up to the courts of kings and queens in African society. There was no recognition of kings and queens in the Bill. Why should reviews of cases from the traditional court have to go to the High Court? Furthermore, the judges and magistrates had studied Roman-Dutch and English Common Law and not African law. Was there not a danger of the judges judging incorrectly in a democratic South Africa as they had not studied African law? Was that restoring the dignity of the African people? Before 1994, one could not study law without English and Afrikaans, and Latin, which was a dead language. Why should justices who could not even speak an African language preside over African courts? The African people had not been taken seriously and the European legacy in the Bill was trying to bring African courts in line with the principles of the Constitution.
He wanted the political principals, the politicians who had driven the Bill process, to appear before the Committee the following day and to explain why they had not seen those matters.
There had been a reference group, but the report and conceptual document from that reference group had never been submitted to the Portfolio Committee, despite repeated requests. There was a College of Justice training centre in the country, but the programme was not mindful of the fact that South Africa was an African country at the tip of the continent and not an outpost of Europe. When Parliament dealt with African matters, the people needed to see that they were being given the freedom that they had fought for and not cosmetic freedom.
It was disappointing that it had taken ten years to produce a piece of legislation that was a carry-over of colonial arrangements. He found it difficult that if he appeared before a magistrate’s court or any court, he was not allowed to opt out, but white people in the country, even if they committed offences in the jurisdiction of a king or queen, were allowed to opt out of customary law. If they believed in true equality why should they be allowed to opt out. However, African people could not opt out of Roman-Dutch or English Common Law which came from a place that his people had never been to.
There was no effort to restore the dignity of the people of Africa in the Bill. The Chairperson was not a sangoma, but he could see that much more work had to be done. He wanted the Bill to be passed but it was not going to be passed just for convenience. He wanted to pass a Bill that would be valid for many decades to come. Public resources were used to produce the Bill, so it was necessary to produce a valid law and not assume that in the future people would have to repeal the mistakes in the Bill. Public resources could not be used to do something a hundred times. It was necessary to produce a quality Bill that would last beyond his lifetime and in which there would be no mistakes to be corrected.
The Chairperson hoped that the distinguished people present, the judges and researchers, would address the problems. The country could not have universities that trained lawyers without teaching them an indigenous African language. South Africa could not have lawyers and judges who had not studied an African language but wanted to preside over traditional courts. And why were they not called royal courts? Why should they be subjected to mediation, which was also a foreign concept imported from abroad as if African people did not know justice or have concepts of law? Africans had struggled against colonialism and now were still struggling against neo-colonialism.
The Bill had to guarantee full freedom and not a half-freedom that brought the traditional courts under the Constitution. No law should try to give half-freedoms under the guise of adherence to the Constitution. Even the Constitution was subject to review and was not cast in stone, which was why there was a Constitutional Review Committee. People should not say that because there was a Constitution, a traditional leader could be defined, but not kings and queens. All societies were based on traditional systems and institutions. The issues would be raised with the principals of the drafters of the Bill. He would raise the issues when the principals came.
He had received a request from the National House of Traditional Leaders that they make their presentation the following week as elections had recently been held and people were new to their positions. It was a fair request.
The Chairperson welcomed participants in the gallery. Their presence showed the importance of the matter. Nothing was going to be finalised in Parliament, but the Committee would go to the people and engage with them in their own language. The will of the people would determine the Bill.
Presentation by the Provincial Efficiency Enhancement Committee of KwaZulu-Natal
Judge Mjabuliseni Isaac Madondo, Chairperson of the Provincial Efficiency Enhancement Committee (PEEC) in KwaZulu-Natal, made the presentation. In January 2017 the PEEC had resolved to make submissions to the Portfolio Committee and as a follow-up, he was making an oral submission.
He would set out the background so that everyone could understand the subject and what was meant by the subject. In the olden days it had been a case of self-help and the survival of the fittest. Government was organised to ensure law and order and those authorities had to create systems to settle disputes and prevent clashes. That had happened in Europe and in Africa. Traditional courts had come into existence to put up a mechanism to protect the subjects, to settle disputes and maintain law and order. Colonialists had attempted to prevent African people from using the traditional courts, but the Black Administration Law of 1927 had recognised the courts. The Law had recognised and regulated African courts and had given them civil and criminal jurisdiction over their people.
In the apartheid dispensation, the traditional courts were recognised but customary law could be applied only as long as it was not repugnant to civilised society. Traditional courts could not be opposed to public policy or national justice.
The present position was specially stated in the Constitution. Traditional law was not subservient to common law. An Act of Parliament had recognised courts. Traditional courts should therefore be given the same recognition as any other court.
Judge Madondo referred to defects in the Bill. He had seen the word ‘escalation’ but the Bill was silent on appeals. Previously, appeals were laid before the Senior Magistrate at a Magistrate’s Court. Now reviews were to be held at the High Court. It was not practical or feasible for rural people. The cost of a High Court appeal was very high and rural people could not afford that. Secondly, the High Court lacked the capacity to take on all the appeals from traditional courts. Traditional courts should be treated as courts, not as sites of mediation.
The clause allowing people to opt out of the traditional court undermined the traditional courts and it might infringe on the rights of people if some people were not subject to the court.
The Bill did not say how jurisdiction arose. The enforcement of traditional court orders was not clarified. There was no indication as to how court orders would be enforced. In the past, traditional courts had sometimes appealed to the magistrates’ courts to enforce decisions.
The Bill required those holding court to take a pledge every day. That was impractical and demeaning. Other courts did not do that. Regarding the role of women in the traditional courts, he had to say that, despite complaints about the lack of women in traditional courts, there was nothing that legally prevented women from participating but he acknowledged that people in the traditional ranks were actually of male stock. At least a third of the traditional courts should be women. Traditional courts were not for foreigners. The traditional court aimed at providing speedy and affordable remedies.
The Bill determined that legal practitioners were not permitted to represent someone in a traditional court. That provision was along the lines of the Small Claims Court.
PEEC had prepared a bound presentation for the Committee and also a book on the role of traditional courts which could help in matters of that nature. The book was available at a fee.
Ms M Mothapo (ANC) was concerned about Clause 4. The Deputy Judge President had addressed it. It was about the jurisdiction of the court. She asked Adv Mangena to unpack the clause relating to opt out. Under what circumstances and at what stage could one opt out? And on which grounds? What type of support would DoJ&CD offer to those courts? An impression should not be created that the Bill had created the traditional courts. They had always been there, even in pre-colonial times.
She did not want to see a situation such as the one in Malawi. In 1993, the Malawians had begun with legislation and in May the previous year, it had been presented in the Malawian Parliament, but to date the Bill had not been costed and therefore not implemented. Similarly, in COGTA, the traditional councils were not in place as they had not been budgeted for. It was a critical Bill and the Committee did not want to see a similar situation. It had taken the Department more than ten years to draft the Bill. Some Bills went through Parliament with supersonic speed but this one had not moved. More than 20 years into democracy, people could not be working on sections of the Black Administration Act concerning civil and criminal jurisdiction. The government had turned into a laughing stock in a constitutional state. The Bill had to be expedited.
The issue of review and appeals concerned her. In Malawi, in terms of customary law, the legal system went from the local court to senior traditional leadership and then it went to the upper structure of kings and queens, where there were such people. In Malawi, it went to the National Court of Appeal after that.
Ms Mothapo noted that escalation sounded like a very nice term but what was the Bill referring to. Was the Department referring to houses of traditional leaders or kings and queens when it talked about structure? Traditional courts had turned into a laughing stock. Traditional courts did not issue a summons but issued a letter inviting the parties to come to the kgoro. People could opt out. Those who had been “civilised” and assimilated into Western customs did not have to subject themselves to “primitive” culture. It was the way that it had appeared in the Black Administration Act where teachers and others did not have to appear before the kgoro. Why, in the current era, were there such similar provisions?
Mr S Mncwabe (NFP) greeted the kings, queens, and judges and academics. He had been to Europe and they did not have traditional leaders. There was a queen in Buckingham Palace. His colleague, who had another life, had covered him with her questions. The clause regarding opting out invalidated the whole thing. Why have it in the first place if one could opt? It gave one an option to respect or disrespect one’s king. Disrespect was being institutionalised. It undermined the king or queen in that area. His opinion was that that line should be scratched out of the Bill. It was not good to have that in the Bill. One could not go to the people and say that people did not have to go to the traditional courts. If one got home and found a document from the sheriff, one would not be able to debate whether one went or not. One had to present oneself before court. But in the Bill, the drafters were playing games. He agreed with Deputy Judge President
The Chairperson welcomed a delegation of Contralesa (The Congress of Traditional Leaders of South Africa) members from the Western Cape to the public gallery.
Mr L Mpumlwana (ANC) stated that the problem in hand was that the traditional courts had just been accepted for Natives or Africans. He preferred the term ‘natives.’ Europeans were not expected to go there. Now there was one country and there were different courts that had not been merged into one court. What if there was a traditional court and a magistrate’s court in a rural area, which one should a person to go to? If it was compulsory to go to one and not the other, then what was going to happen. DoJ&CD should have merged the courts. How could the Department expect van der Merwe to go there? He understood that the opt-out option undermined the courts, but what did one do? He had not heard a solution. Did magistrates not have jurisdiction in the rural areas where there were Africans, but in cities only? Or did one say that one court was for civil matters and the other for criminal offences? Those were the things that had to be worked out. He hoped that one of those giving input could give an answer.
The Chairperson said that was why he asked what had been done for ten years. Those questions should have been asked a long time ago.
Mr G Skosana (ANC) noted that there were glaring omissions in the Bill. The court of appeal was one issue. Traditional courts were structural. There was headman or headwoman and then above that a chief and above that a king or queen. The person at the headman’s court had to appeal to the court of the chief and then to the king or queen, but the Bill spoke about appeal to the High Court in terms of common law. So, the Bill did not speak about the role of the chief’s court or the king and queen. The drafters needed to merge the two.
The opt-out clause made the Bill seem like a “by the way” option. The traditional court was there if one wanted it. If one could see one was going to lose a case, one could opt out and go to the magistrate’s court. After 10 years, the drafters should have had a clean document. There were too many loopholes and they had to be tightened.
The Chairperson said that the Constitution wanted people to have a common South African nation but there could not be a situation where some lawyers opted out of understanding sections of the laws of the people and yet who were allowed to decide in disputes affecting those people, unless African people should be treated as if they were sub-human and less important in the country of their birth. He wished that everyone was sitting in a circle in Parliament because then there could be a real discussion.
Mr Mpumlwana asked who else was to submit. Was it possible to give them a chance to do?
The Chairperson stated that the agenda was such that they had to deal with questions to the Deputy Judge President before moving on. So, he wanted take questions and comment on that input.
Mr Mncwabe asked for the opinion of the Deputy Judge President. Would the Bill avoid situations such as the jailing of the king or would it make it worse?
Mr Mpumlwana asked for the Judge’s opinion on the question of jurisdiction which might be linked to opting out.
Judge Madondo responded to Mr Mncwabe. If the Bill was structured with the thinking that traditional courts were like any other court, the Act was there to regulate its function. To put the traditional courts in line with the Constitution was not to deny the nature of the traditional courts. Opting out, as the Member correctly put it, amounted to disrespecting the court and all the members of the court. All court persons were subjected to a kind of disdain. In the present form, the kinds of activities seen earlier (which he did not want to talk about) would prevail.
Regarding dual jurisdiction, he told Mr Mpumlwana that there was no dual jurisdiction because the magistrate had jurisdiction over common law and traditional courts had jurisdiction over a particular area or traditional council. In the old days, even if white people or others were residing in that area, they would have been exempted from the jurisdiction of the traditional court. That had to change. Regardless of who you were, if you resided there and were called to the traditional court, you had to attend. The jurisdiction also depended on the seriousness of an offence. It was possible to look at the different types of offences that were dealt with by each court. The Bill could spell that out.
The Chairperson stated that if the fathers and grandfathers of African people were convicted under the common law system, ignorance of the law had been no excuse. Likewise, if van der Merwe transgressed, he should go to a traditional court regardless of his ignorance of traditional courts. If he trespassed he had to be tried by a traditional court.
Mr Mpumlwana asked if they were continuing the old system where certain cases went to traditional courts and others to common law courts. He had a problem because the so-called traditional courts would only hear petty things because those that mattered would go to the common law. That was why he was asking about jurisdiction. The question of what mattered in the end was what had to be heard in each of the courts. In the old days, the African courts had dealt with everything, even murder, and always had a solution. He thought that a lot had been taken away from traditional courts. Was that going to happen again? The magistrates should have the same jurisdiction as the traditional courts.
The Chairperson reminded everyone that they were just lifting the curtain that day.
Mr S Matiase (EFF) thanked the presenter and the Chairperson for his comments in his introduction. It had been ten years of going forwards and backwards. Listening to the inputs, it sounded like everyone was engaging in the lamentations of Jeremiah. When was everyone going to stop lamenting and reliving the past when they already had administrative and legislative authority in their hands? That was the question. When was dual jurisdiction going to end? There was no longer a need for one system of jurisprudence for the colonialists, or Europeans, for those who did not like colonial connotations, and one jurisdiction for Africans. That had to be brought to an end. How, and when, would that be brought to an end? The drafters had to go back to the genesis of the idea. For many years, European jurisprudence had been allowed to rule and dominate the African cultures and values. European values were reflected in the Constitution. That was where the problem lay. The Constitution had been showered with praise but that was where the crisis lay – in the Constitution. The dual jurisdictions had to be unbundled. Een deur vir blankes and een deur vir die nie-blankes. (One door for the whites and one door for the non-whites.)
Mr Matiase stated that the country had to outgrow the past and leave the lamentations in the past.
The Chairperson stated that Mandela and the people who had worked with Mandela were so wise that they had created a Constitutional Review Committee but failure by the lawmakers to do their duty could not be blamed on the founders. It was time to use that review or enabling framework.
Mr L Ramatlakane (ANC) had not heard the entire presentation but felt that it would be difficult to paper over the cracks as everything had to flow from the constitutional framework. His view was that they should look at the modes and processes of the traditional court and try to bring it up to date. It was necessary to look at whether people could be trained to lead evidence in the traditional court or whether the so-called learned people would continue to question the processes in the traditional court. The traditional court, like all entities, had to be uplifted and brought to the level where it would be acceptable to the public. Members could not harp on the past as that would not solve the problem. It was a problem to everyone in the country.
Legislators had to be objective and to interrogate the structure so that it was suitable for the people that it was going to serve. People had to feel that Parliament was trying to transform the structure. The legislators needed to bring the modern ways of doing things. People out there had to see a transformed structure aligned to modern ways of doing things.
Mr Ramatlakane noted that the drafters had suggested that legal representation should not be allowed, as in the small claims court. He pointed out that the reason that there was no legal representation in the small claims courts was that the amounts involved were minimal. His appeal was that rather than demonising people who were educated, rather bring the traditional courts in line with modern society.
The Chairperson stated that, first and foremost, the people should be transformed because certificates from university did not give someone a better understanding than someone who had never been to school but understood the community. He suggested that it was time to re-visit what it meant to be educated. Now they were talking about indigenous knowledge systems and people were making a lot of money out it. So, it had to be a transformation of both structures and attitudes.
Presentation by Alliance for Rural Democracy
The presentation slot was shared between Constance Mogale, National Coordinator of the Alliance for Rural Democracy, and Solomon Mabuza, a farmer from Buffelspruit, Mpumalanga, and Chairperson of Silwanendlala Ubuntu Farmers Association.
Constance Mogale explained who the Alliance for Rural Democracy was. It was a cross section of civil society organisations and individuals committed to democracy, equality and access to justice for all who live in South Africa. They were involved in the ongoing struggle to defend democratic rights against the onslaught of new laws and policies that favoured the interests of traditional leaders and politically connected business investors at the expense of the poor South Africans living in the former Bantustans. The network was composed of research centres and others. She corrected the Chairperson’s earlier comments. The Land and Accountability Research Centre was in the House that day. It was not absent. It was just that the Chairperson had not called on them. The Centre had requested to make a presentation the following day and that had been agreed. The Centre was part of the Alliance.
The network was the voice of the rural people who did not need to be represented by some important figure. People could join the Alliance and feel free to opt in or out depending on whether they agreed with the Alliance’s position.
The Bill was originally introduced in 2008 but it had errors. It was re-introduced in 2012 and the current one was introduced in 2017. This version was progressive but there were problems. She had been in the Reference Group, but some people there had felt that their voices were being marginalised. The Bill had to regulate the courts that were already there. Terms such as ‘presiding officer’ gave power to a senior leader and distorted the living customary law based on distributed power, participation and consensus Was there a budget? Would registrars be empowered?
The Bill recognised the voluntary nature of customary courts. The 14-day timeframe for opting in or out was limiting and it was not clear whether there would be internet connectivity so that people could opt in or out timeously. Most dispute were between families and a person needed to have the right to opt out if he or she did not think that he or she would have a fair hearing.
The High Court, as the only remedy, contradicted the concept of bringing justice to the people. The types of offences that traditional courts could hear were not listed. What if they were able to take away citizenship or human rights, for example? There was a need to educate people. The Bill stated that women might participate, not that they had to participate. In the rural areas, women had been socialised to believe that traditional courts were for men.
The Bill changed every time it came back for discussion. The first Bill had recognised levels of customary dispute practice. It would start with families. She was not sure whether the latest Bill recognised the layers of customary courts.
She referred to the Traditional Council Act, noting that when traditional leaders had not transformed themselves, the law had been changed to accommodate them. The latest concession to the traditional leaders was a Bill to extend the time of traditional leaders in office. The Alliance had been hoping that the Traditional Courts Bill would be in place in 2015. Why were Members asking DoJ&CD questions that they should have asked long beforehand, during a public hearing?
Parliament had to look at the Bill and Members needed to see how people felt in the rural areas. The administration processes were unclear. How accessible would access to justice be? Not being entitled to legal representative was not fair. Where were the checks and balances? How were people going to deal with those who abused their positions? Ultimately, although it was the rural people who would be impacted by it, the Bill would be decided by Parliament as there was never any money for rural consultation. It had to be remembered that a traditional leader was a human being and he could not be a one-size-fits-all, unlike the different courts to address different issues.
The Chairperson pointed out to Ms Mogale that she had not been marginalised in Parliament.
Mr Solomon Mabuza said possibly one may get confused discussing the Traditional Courts Bill going forward having already spent ten years discussing the matter without it aligning to the current legal framework of the country. His thoughts were that at the time that Parliament recognised traditional leadership in South Africa some things had been left behind. Many traditional leaders within the country had never been installed by their traditional communities but had been and remained proxies of external influence, which was why even Parliament and traditional communities could never reach consensus on the matter of the Traditional Courts Bill.
The problems started in the war of the Swati against the Basotho between 1800-1845 where most of the Swati chiefs in Mpumalanga province had been installed by the Kingdom of Swaziland, by the late Queen Lanyanza. To date those chiefs still reported to the Swati Monarch and therefore as Parliament was deliberating on the Traditional Courts Bill trying to align it to the constitution and the legal framework of SA there would remain challenges as the Swati traditional leaders were using two lines of reporting. In a similar manner when one had a child with two different surnames, it would be difficult to raise that child properly as the upbringing would be from two different homesteads.
The traditional leaders referred to were being compensated by the South African government but would also be seconded from Swaziland. For example where he came from: there could be found a tribal authority called the Matsamo Tribal Authority. The chief of that tribal authority was from Swaziland though he was being compensated by the SA government. Many people originally from Swaziland were receiving social grants from the SA government and the system in use by the government of SA in traditional communities was not similar to the government of Swaziland.
As attendee of the session that day he was not supposed to be in attendance, as his organisation had long been sending representatives to Parliament. Before the homeland system there had been paramount chief J.M. Dlamini in Mpumalanga, and when the decision had to be made regarding the homeland system and their allocated budgets; he had requested leave to go and consult the Swati Monarch in Swaziland. Those discussions documents had been signed-off by the late J. Mabuza, and all those machinations at the time were to delay the process of the TCB. To date, he was surprised that Parliament was discussing the TCB because it was unclear where it would be implemented and to whom it would apply as he was from the rural villages and speaking in laymen’s and traditional terms the only thing he knew better than Roman law was how things were done in traditional communities.
Each and every family according to his cultural understanding had their own leaders; meaning there was a king, chief and area headman in each family. The chief was the grandfather in a particular family; the area headman would be the eldest brother within that family and when there were visitors from anywhere, the area headman would be the first to meet said visitors to inquire about their visitor and would then inform the chief. The Chief would then discuss the contents of the visit with his traditional council and there were no problems but the need of the TCB only arose because that entire traditional set-up had been hijacked and converted into a business model. Going to a traditional court required one to pay a fee, which was why citizens and traditional authorities were encroaching on parliament wanting it to force the TCB to be passed into law. Traditional authorities had to refrain from wanting government to create businesses for it.
Mr Mabuza had heard recently heard from someone that the South African constitution seemed to be a bible for the next generation. He questioned why then the Constitution was not being respected because as traditional leaders and government, Parliament could not divide South Africa. The only time South Africa seemed to be divided was when it came to traditional leadership because traditional leaders could not follow the Constitution though they had been doing wonderful work in terms of being cultural custodians. But even that investment of time seemed to have evaporated as traditional leaders seemed more focused on business of late.
What had been observed and what his organisation would never agree to is that, when it came to traditional courts, traditional communities were not safe. When one was called upon to appear at a traditional court, one could easily find defendants or claimants with guns and all sorts of other weapons on their persons attending a court sitting. Who would mediate when an unhappy defendant decided to shoot a claimant? Additionally, the laws and rules of one’s homestead could not be applied in the leadership of a whole nation. Generally, one had to show leadership in one’s family affairs. Only after one had been requested to contribute to the leadership and development of one’s nation could one lead or contribute.
Currently the situation was that traditional communities were not being consulted but simply would be requested to give input on a Bill in Parliament. The Traditional Courts Bill had been within Parliament’s processes from 2008 and traditional leaders would come to Parliament saying they had consulted their traditional communities without ever having done that actually. As traditional communities they lived with traditional leaders and preferred that way of life, but his plea was that, when traditional leadership was not imbued with spirituality that leadership had to be replaced because spirituality had to lead.
In Nkomazi, people had died because of the processes to do with the Traditional Courts Bill. Mr Victor Mashabane had been killed and left in front of his gate in 2017. The investigation had since disappeared. As recently as February 2018, a Mr Solomon Dlakude from Mr Mabuza’s organisation had been murdered inside his home. Both those individuals had died because they had been raising the issue of a disruption that had occurred during the process of restitution because of land claims that had been made against a particular traditional leader. When one had to appear before the traditional court to state the nature of the claim, the traditional court had a system where, after detailing one’s claim, the decision makers would go into seclusion to debate and return with a decision, but the claimant would have been absent from the debate.
All of that was not within the spirit of the democracy which had been long fought for in South Africa.
He further was requesting that Parliament had to do an oversight visit in a similar manner to the High-Level Panel on the Assessment of Key Legislation and the Acceleration of Fundamental Change, as his organisation had been able to raise its concerns on the key legislation and the effect to date. To date the Mpumalanga legislature had not notified the residents of the province about the response of Parliament regarding the public hearings undertaken with the High-Level Panel or the TCB. There seemed to be lack of monitoring which caused the delays in service delivery when budgets had already been allocated. And when citizens raised concerns about land issues, there was no bigger business than traditional leaders selling land in Mpumalanga.
Traditional communities could not at every opportunity come to Parliament to complain about lack of employment for unemployed youth when traditional leadership were limiting employment opportunities and destroying futures as if said communities had no plans on how to develop and create employment. And when said communities complained then they would be threatened with traditional courts by traditional leadership and when said courts sat, one lost one’s case as one appeared at the gate. That type of operation lowered the reputation of South Africa abroad.
Traditional leadership had to consult its communities so that they could remind each other about how it had gotten to be that so many families were being led by a particular family; had that been by consensus or had people been forced through submission. Some of the problems related to stock and harvest theft and human trafficking where young girls used to be kidnapped.
If Parliament could promote monitoring of government programmes because the lack thereof was the reason, there was so much outcry at local government. It remained very tough in rural areas as the traditional leadership as he had earlier alluded was interested only in selling land to investors at the expense of traditional communities.
His plea was that the Traditional Courts Bill not be passed as its time was not ripe yet because currently traditional courts were not safe.
The Chairperson noted that others took the same view that he took but the Committee had to consider all views. He encouraged Mr Mabuza to put his views on paper so that they could be considered. The Committee had to engage with all issues because that was what Nelson Mandela had wanted Members to do.
The Chairperson assured the presenters that the Committee would go to every corner of the country to get the views of the people. He stated that South Africa was a United Nations as there were people in the country from Swaziland, Lesotho, Botswana etc. The African people had not drawn the boundaries, but they would respect them. The Committee was alive to all the matters and would not leave any matter unattended to.
Mr Mpumlwana said the Committee understood and accepted the plea of Mr Mabuza. However, he was of the view that probably it would be better if the Monarch of Swaziland and Swaziland could be re-assimilated into South Africa so that there were no more boundaries. He, however; was concerned as well about the legal representation in terms of the traditional courts not necessarily needing references from Roman-Dutch law because normally in traditional courts claimants and defendants were able to express themselves without the need for representation and he also did not believe in the restriction of the constitution which had been referred to. There were small things that were sometimes not allowed.
Did Ms Mogale not agree that they did not need people who would quote Roman-Dutch Law, procedures and other things? In the traditional court everyone was allowed to talk. Did one really need lawyers? The Bill was not unconstitutional on that point. She needed to give the Committee more about what needed to be done. Members needed to know positively what the Alliance wanted the Committee to do to go forward. The Committee was drafting the Bill and so it needed to know what people thought and what they wanted. He wanted to know what the Alliance expected Parliament to do in terms of going forward. The contribution had to be about what could be done.
Mr E Buthelezi (IFP) asked whether someone was killed during a case in a traditional court.
Mr Mabuza replied that the person killed had been Mr Victor Mashabane for talking about land restitution which had, to date, been interfered with by traditional leadership.
Mr Buthelezi reminded the meeting that they were dealing with the Traditional Courts Bill which sought to affirm values of customary laws and customs and were looking for restorative justice and reconciliation. He appealed to the Chairperson not to allow that subject matter to be clouded by many things from outside of the Bill. If outside things were included in consideration of the Bill, it would dilute everything. He was inkosi himself from KZN. Cases were tried every day. It was not something new. One could not say that the Bill should not be passed because people might be killed.
The Committee should listen to the people but ensure that the Bill was passed if the Committee wanted to do justice. It was shameful that after 24 years of democracy, they were sitting in Parliament arguing whether there was a need for traditional courts. It was supposed to have been the first thing that Parliament should have done. They had come from a time where everything that was white was good and so African people had to restore their own values. People should come with recommendations. Restorative justice was key. He was meeting with white farmers who wanted to bring their matters to the traditional courts because they appreciated the way in which the matters were handled there. It was like paying tax; you do not argue.
The Chairperson said that when he was trained as a lawyer, he was told about admissible and inadmissible evidence but in the hearing, it was not about admissible and inadmissible evidence. People could speak freely but at the end of the day, the Committee would go with the majority view.
Ms Mothapo stated that Parliament was the Parliament of the people and people were invited to participate. Ms Mogale should not think that the Committee would not consult in the rural areas. Ms Mogale had said that people should have the right to choose their leader, induna or inkosi but were they not trying to dilute the institution by the so-called freedom to choose? The issue of impartiality was another concern. Ms Mogale had mentioned fighting with an uncle, but the DoJ&CD had mentioned a Code of Conduct. Even in terms of customary law, there could be a conflict of interest, but one could not be a referee and a player at the same. An uncle could not preside over a case where one of his relatives was involved. That would be prevented in the Code of Conduct.
Was Ms Mogale from a rural area? Maybe she participated in the traditional courts. Most courts since the advent of democracy were allowing women to participate. It was up to women to participate in the courts and to influence decisions. The Alliance was alluding to the progressiveness of the Bill and the involvement of a minimum of women. What was minimum? In terms of fines, the fines were not for the benefit of the “presiding” officer. They were registered in the community trust account and a receipt was issued to the one who had paid. Contralesa was coming to the hearing the following week and she was going to ask them. If a person had to pay in the form of an animal, it belonged to the traditional council or authority.
The Chairperson stated that it had to be accepted that African communities had been destabilised. Peculiar situations had been created. The institution was not on trial. The Traditional Governance Act had not been implemented and Members could not disagree if women said that they had been excluded. If that Act had been implemented, those concerns would not arise. He had never seen people who were not interested in who they were.
Teaching traditional African laws had to be compulsory for black and white students. If everyone was equal regardless of race, everyone had to learn about Africans. The books about African people were written mostly by social anthropologists who could not speak the language and relied on hearsay. Ministers and Deputy Ministers had to do their work. Why should they, as legislators, lament when they could say that a student could not receive a law degree if he or she did not pass an African language as a subject. The same applied to social workers etc. How could a psychologist advise someone if they did not speak the language? That was brutalising the people.
What was happening in respect of the Bill revealed that African people were not taking themselves seriously. Traditional leaders had made sure that there was justice and law without a budget for hiring police etc. The Committee was just opening curtains. Tomorrow they would go into the house and take themselves seriously. Mandela had referred to the restoration of the dignity of the African people.
He thanked everyone for being there. The Committee would be taking the conversation seriously and they would meet the following day. Pertinent issues had been raised and Ms Mogale and Mr Mabuza should go and sleep on the matters.
The Chairperson acknowledged Mr Sithole, CEO, House of Traditional Leaders.
Mr Sithole wanted to comment on a few things from the last two presentations. Had the presenter read the guiding principles regarding the application of the Bill? Everyone had the right to do so if someone had a vested interest in a matter. Was there a difference between opting out versus recusal in the Bill? Was there any understanding of the difference? The fine that was normally paid in a traditional court did not go to the person and therefore it was not restorative justice, but the Bill referred to restorative justice in Clause 8. That might give rise to a misunderstanding. He stated that it was very rare that one came across a Committee in Parliament that had such a deep understanding of traditional leadership.
Mr Sithole added that what had been raised by Mabuza was very serious and the Traditional House had to intervene. They had to get details of the matter and get involved in it.
The Chairperson was glad that the Committee had experts such as Mr Sithole and they could learn from each other. Referring to the recusal versus opting out, he had not understood it in that way.
Ms N Ngonyama, member of the National House of Traditional Leaders and Chairperson of the Legislations Committee, said she was a practising attorney. She could not leave there when the minds of some people were so clouded. There were issues that had to be placed on record. The customary law and the law studied at university complemented each other. Once the person had left, one could not come back and that was why she wanted to speak then, before anyone left. The lady had spoken of progression. It was progression that she, as a woman, was a Chief. She was the Head of the Traditional Council. The report could not be taken as the final document. That one had to be cleared.
Coming to the issue of Mr Mabuza, she wished to place it on record that they could not be told not to pass the Bill because of what happened to a family member. One of the members of the Traditional House had lost two members of her family in that area of Mpumalanga in the same week. Those were isolated incidents and they had to be dealt with in terms of the law of the country. Those issues had to be cleared out. Traditional leaders were not killing people.
The Chairperson said that he had deferred to the authority of his kings and queens and he would let the discussion continue as directed as he did not want the Committee’s record to be blemished. Ms Mothapo was also a traditional leader, but she was wearing another hat. Ms Mogale could comment but things could not go record that were not correct.
Ms Mogale asserted that she did feel marginalised. She referred Ms Ngonyama to point three of her report which called for public dialogue. When people came to Parliament, one had to follow procedures but in rural areas, one had discussions. In a public dialogue, people like Mr Mabuza would be given an opportunity to debate their issues. It would be like a level ground where everyone could speak. Ms Mothapo had wanted to know if she was from a rural village. She was from Mokgalong, and a niece of the Batlokwa and she subscribed to the traditions of her people. She agreed that people should brush with one brush. If women were allowed in Ms Ngonyama’s Council, that was good and should be documented so that people could learn from those best practices, but it was not the case everywhere. She had been working for the Land Access Movement of South Africa. They had published a booklet on cases of women abuse by traditional councils and traditional leaders in all provinces.
The Chairperson interjected saying that abuses happened everywhere.
Ms Mogale said that it was not true that women were allowed in traditional councils and courts throughout the country. It simply was not true. That was why she had said that there was a need to transform issues and personalities. Even departmental officials discriminated against women. Her network had cases relating to hereditary rights where compensation had been given to a male descendent but not to a woman, undermining all the women in an area.
The Chairperson interjected asking her to share the literature rather than telling them about it.
Ms Mogale agreed to do so. She had come to make her submission and she was saying it. The Committee could interrogate her statement when she left, and they could accept it or reject it. It did not matter. But, it was her submission and she owned up to it. Ms Ngonyama was not sure of her facts and kept saying that she assumed things. The same Act was before Parliament for public hearing because the Traditional Council did not comply. It had not conducted elections and members were not legitimate. She did not feel comfortable when Ms Ngonyama defended injustice. The Code of Conduct would not stop everything.
Ms Ngonyama asked to respond. She had said that there would be a Code of Conduct arising from that Bill.
There was also a Code of Conduct for traditional leadership governance. The Department of Traditional Governance and Cooperation was the one responsible for the Act that had not yet been passed.
Mr Simon Mabuza said that as the discussion progressed there could have been ambiguity in what he had said when in fact he was agreeing with the sentiment of the sitting. When he had been referring to killings his intention was that as he was opposed to the passing of the Traditional Court Bill; government had to first deal with and fix the current deficiency of traditional courts and to inculcate the spirit of consultation and monitoring because traditional leadership often decided on behalf of traditional communities without having consulted them first. Traditional communities still had not been told anything about the Traditional Court Bill because most traditional community residents still had no knowledge of it. Therefore, his organisation was blocking the passing of the Traditional Court Bill on the basis that it had to be processed with the knowledge and consensus of the affected and many residents of traditional communities.
The Chairperson reminded Mr Mabuza that exceptions were not the norm.
Mr Buthelezi informed the meeting that fines went to the Department of Justice. Restorative fines were paid to compensate people and the money left over went to the Department. Inkosi swore to the Republic and to a code of conduct before they became inkosi.
The Chairperson commented that, in Mpumalanga, people had been brutalised. The problem was that communities had been destroyed and it could even be that some institutions had been destroyed and therefore, if things did not happen correctly, it was not the fault of the institution. People needed the institutions and the Committee needed all the contributions possible about how to regulate the institution.
Mr Malala Xolo, Regional Magistrate Eshowe, informed the Committee that the DoJ&CD had asked Justice Madondo, Mr Ngubane, Chief Magistrate from Durban, and himself to conduct five workshops for traditional leaders on behalf of the College of Justice. More than 300 traditional leaders had attended. In KwaZulu-Natal they had established that women were participating in the traditional courts. He had a list of participants, but they had not specifically asked about women. There were 256 participants and 23 were women.
In KwaZulu-Natal there was full participation by women as headwomen. The communities appointed headmen and headwomen. They become counsellors in the courts in most areas in KwaZulu-Natal. The Deputy Chairperson of the House of the Traditional Leaders in KwaZulu-Natal was a woman. It was not a general problem throughout the country. There had been some very powerful queens in the Zulu nation, such as Queen Nandi.
The magistrates had made a submission which went through the Bill, clause by clause, and they asked the Committee to look at it. It would be very difficult to present something of that nature.
The Chairperson said that there would be perceptions and some of them would be wrong because some people had been brought up in townships. He hoped that Contralesa would throw more light on the matter the next day. Everyone had had an opportunity to express their views today. Some matters that had been raised needed to be addressed with the police so that traditional leaders were not blamed for murders.
Mr Skosana noted that the problems raised by Mr Solomon Mabuza had to be addressed by Cogta as it was an operational matter.
The Chairperson said that he felt empowered.
The meeting was adjourned.
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